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Friday, March 16, 2018

criminal procedure code - investigation - transfer of investigation of all First Information Reports lodged against the petitioner and other members of GJM, to any independent investigation agency = In case of faulty investigation, where an accused has been wrongly roped in, he has right to seek all remedies before Court of Law for further investigation and a Court of Law is able to marshall all evidence and capable of discerning truth from evidence on record. Although as a principle, there is no fetter on an accused to move a Court of Law for transfer of investigation, but on the facts of this case as noted above, we do not think it to be a fit case where this Court may exercise jurisdiction under Article 32 to transfer the cases enmass to an independent agency.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 182 OF 2017
BIMAL GURUNG … PETITIONER
VERSUS
UNION OF INDIA & ORS. … RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
The petitioner, the President of Gorkha Janmukti
Morcha (hereinafter referred to as “GJM”), has filed
this Writ Petition under Article 32 of the
Constitution of India praying for transfer of
investigation of all First Information Reports
lodged against the petitioner and other members of
GJM, to any independent investigation agency. In
the Writ Petition, following prayers have been made
by the petitioner:-
“A. Transfer the investigation of all
the FIRs lodged against the present
Petitioner and other members of the GJM,
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details of which are provided in Annexure
P-4, from the West Bengal Police to any
independent investigation agency like the
NIA. CBI or any other independent
investigation agency which is not under
the control of the Government of West
Bengal; and
B.Transfer the investigation of all the
current FIRs lodged against the present
Petitioner and other members of the GJM,
from the West Bengal Police to any
independent investigation agency like the
NIA, CBI or any other independent
investigation agency which is not under
the control of the Government of West
Bengal; and
C.Issue a writ of Mandamus or any other
Writ, Order or direction in the nature of
Mandamus, directing that any future
FIRs/complaints filed against the present
Petitioner and other members of the GJM,
which pertains to the ongoing agitation
in the State of West Bengal, be
transferred to and investigated by the
said independent investigation agency;
and
D. Grant anticipatory bail and protection
against any coercive steps to the present
Petitioner in the FIRs registered by the
West Bengal Police, details of which are
provided in ANNEXURE P-4, during the
course of such investigation by the said
independent investigation agency; and
E.Grant anticipatory bail and protection
against any coercive steps to the present
Petitioner in all FIRs registered by the
West Bengal Police, during the course of
such investigation by the said
independent investigation agency, and
F.Grant police protection to the present
Petitioner, provided by any independent
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police force which is not under the
control of the State of West Bengal, at
the expense of the present Petitioner;
and
G.Pass such further or other orders as
this Hon'ble Court may deem fit and
proper.
AND FOR THIS ACT OF KINDNESS THE
PETITIONER AS IN DUTY BOUND SHALL EVER
PRAY”
2. The petitioner’s case in the writ petition is
that GJM led by the petitioner, has been at the
forefront of the Gorkhaland agitation since 2007.
GJM is a registered political party, which has also
participated in the municipal elections, elections
of autonomous body of GTA (Gorkhaland Territorial
Administration), Lok Sabha elections and West Bengal
assembly elections. On 18.07.2011, A Tripartite
accord was signed between the State of West Bengal,
Ministry of Home Affairs, Government of India and
Gorkha Janmukti Morcha for setting up an autonomous
body (Gorkhaland Territorial Administration –
“GTA”), empowered with administrative, financial and
executive powers with regard to various subjects.
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The Gorkhaland Territorial Administration Act, 2011
was enacted to provide for the establishment of a
Gorkhaland Territorial Administration for the region
comprising the three sub-divisions, Darjeeling,
Kalimpong, Kurseong and some mouzas of Siliguri subdivision
in the district of Darjeeling and for
certain matters incidental thereto. The
petitioner’s case is that on 15.05.2017, Hon’ble
Minister of Education, Government of West Bengal in
a press conference stated that Bengali would be
compulsory in all schools in West Bengal. The
Gorkhas viewed this as an encroachment on their
language, i.e. Nepali/Gorkhali. A Facebook post
dated 16.05.2017 made by the Chief Minister of West
Bengal has also been referred to, which mentions
that one of the three languages would have to be
Bengali. The above has been stated to be beginning
of protest carried on by different associations of
Gorkhas and the GJM.
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3. On 30.05.2017, GJM claimed to convene an indoor
meeting of various intellectuals to assess their
views. Petitioner claims that several persons have
been wrongfully booked under Sections 120-B, 153A,
505 and 34 Indian Penal Code (hereinafter referred
to as “I.P.C.”). Petitioner alleged that further
FIRs have been lodged against the petitioner and
other GJM members on 06.06.2017 and thereafter.
Petitioner in the writ petition has pleaded that
there are around 300 FIRs, which has been registered
against the members and supporters of GJM. In
Annexure P-4, the petitioner has given a list of
available FIRs against Bimal Gurung and others
detailing 112 FIRs, out of which in 31 FIRs, the
petitioner- Bimal Gurung is named. The FIRs relates
to various offences under I.P.C.; Prevention of
Destruction of Public Property Act; Arms Act; the
Unlawful Activities (Prevention) Act, 1967; Indian
Explosives Act; WBMPO Act and National Highways Act.
In different FIRs, offences ranged from offences
under Sections 121, 121A, 143, 148, 149, 153A, 186,
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189, 323, 324,325, 326, 307, 332, 333, 353 and 302
I.P.C.

4. Petitioner’s case further is that false FIRs
have been lodged against the petitioner and his
supporters. Petitioner further alleged that on
17.06.2017, the West Bengal police opened fire at
GJM supporters and members, causing death of
innocent GJM supporters. On 27.06.2017, GJM party
members withdraw from the GTA Act. Petitioner and
all the other members have unilaterally resigned
from the GTA. On 03.07.2017, petitioner on behalf
of GJM has written to the Home Minister, Government
of India demanding a CBI inquiry into the death of
three persons caused on 17.06.2017. The petitioner
also wrote to National Human Rights Commission on
03.07.2017. The petitioner in the writ petition has
referred to various FIRs lodged in June, July &
August, 2017. Petitioner has further stated that on
18.08.2017, blast occurred in Darjeeling town, in
which again the police arraigned the petitioner for
this crime and filed an F.I.R. No. 182 of 2017
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against petitioner and other GJM leaders.
Petitioner’s case is that different FIRs were lodged
in identical wording to that of F.I.R. No. 182 of
2017. Petitioner further refers to death of one
Dawa Bhutia, GJM supporter on 01.09.2017, who died
in a shoot out. Petitioner’s case is that Sikkim
Police has registered a case against S.P. Kalimpong
in the above respect. On 20.09.2017, the Chief
Minister of West Bengal has reconstituted the Board
of Administrators of the Gorkhaland Territorial
Administration and nominated Shri Binoy Tamang as
its Chairperson simply because he sided with the
State Government. Binoy Tamang was a close
associate of petitioner, who was also co-accused in
several cases along with the petitioner. On
26.09.2017, Hon’ble Home Minister, Government of
India appealed to withdraw the bandh. Consequently,
the Bandh was called off. Reference to Writ
Petition (Crl.) No. 148/2017 by Mr. Roshan Giri,
General Secretary of GJM was also made, where
intervention of this Court was asked for to
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investigate the extra judicial killings of 10
supporters of the movement by GJM by the State
Police, where this Court has issued notice on
06.10.2017.
5. Petitioner also referred to raid dated
13.10.2017 by West Bengal Police accompanied by
large number of Central Forces at Patleybas and
Limbu busty areas of Darjeeling, where recovery of
AK-47 rifles was falsely shown by the police. On
the aforesaid facts, the petitioner sought the
transfer of investigation of all cases to an
independent investigating agency. Petitioner’s case
is that in the light of recent stand off between the
State of West Bengal and the members of GJM and
agitation in West Bengal over the issue of a
separate State for Gorkhaland, many prominent
leaders and members of the GJM are being falsely
implicated in frivolous cases and there is an
imminent threat to their safety and life, thereby
violating fundamental right guaranteed under Article
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21 of the Constitution of India. The State
Government and the State Police have dealt with
absolute highhandedness to quell the democratic and
peaceful agitation by illegally executing Gorkhaland
members and activists and injuring over 200
supporters.
6. The petitioner is directly named in 31 FIRs.
There is a genuine fear of bias and prejudice
against petitioner and all members of GJM and the
investigation being carried out against the members
of GJM is clearly politically motivated and directed
by the Government of West Bengal. The language in
FIR No. 182 of 2017 dated 19.08.2017 and another FIR
No. 8 of 2017 dated 24.08.2017 lodged at another
police station, which is 44 Kms away narrated two
different incidents of alleged blasts. However, the
language used in both these FIRs is identical
clearly indicating that a draft has been circulated
to the police directing them to register FIRs
relating to blasts. Writ petitioner pleads that 11
members and supporters of GJM have been killed. On
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the aforesaid facts and grounds, prayers as noted
above have been made in the writ petition.
7. This Court issued notice in the Writ Petition on
20.112017 and directed that in the meantime no
coercive steps shall be taken against the
petitioner. The State of West Bengal filed an
application to recall the order dated 20.11.2017
referring to 53 cases pending against Bimal Gurung
and 24 under trial cases. The reply to the
aforesaid I.A. has been filed by the petitioner
dated 23.11.2017. Rejoinder Affidavit on behalf of
respondent Nos. 2 to 9 in reply to the counter
affidavit filed by the petitioner in I.A. No. 125288
of 2017 has also been filed. A detailed counter
affidavit has been filed by the State of West Bengal
to which a rejoinder affidavit has also been filed.
8. In the counter affidavit, the State has come up
with the case that in several cases, warrant of
arrests have been issued against the petitioner by
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the Courts of learned CJM, Darjeeling. A
proclamation has also been issued under Section 82
Cr.P.C. against the petitioner. The petitioner is
wanted in large number of cases and to avoid his
arrest, he has filed the writ petition under Article
32 and has not appeared. In the counter affidavit,
it is stated that there are 56 criminal cases, in
which petitioner is named. The cases relates to
FIRs filed in May, 2017 to October, 2017. A detail
of said cases have been mentioned at page Nos. 139
to 145 of the counter affidavit in Table 1. In
Table 2, at Page 145 of the counter affidavit, there
is mention of 22 under trial cases against the
petitioner – Bimal Gurung, which relates to cases
lodged against him from the year 2007 to 2013. In
Para 7 of the counter affidavit, the State has
further given details of 47 cases, which relates to
the First Information Reports lodged against the
petitioner in June to October, 2017. In 47 cases,
charge sheets has also been filed against the
petitioner after completing the investigation in
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which prima facie material is claimed to have been
found against the petitioner. Charge Sheet in
reference to Sadar P.S. Case No. 213/2017 dated
13.10.2017 under Sections 121/121A/153A/323/120B/
307/302 I.P.C. read with Section 25(i)(a)/27/35 of
Arms Act and Section 3/4, Explosives Act have been
referred to in which charge sheet and supplementary
charge sheet has been filed.
9. The respondent’s case in the writ petition is
that in the year 2007, Gorkha Janmukti Morcha (GJM)
led by Shri Bimal Gurung started the agitation for
Gorkhaland State, which ended in year 2011 after
constitution of Gorkhaland Territorial
Administration Act. Agitation has been launched by
GJM led by Bimal Gurung, since the month of
May/June, 2017 by stoking the passion of common
public on the alleged language issue. In the counter
affidavit, it has been claimed that GJM protested
against the alleged imposition of Bengali language
on the hill by the State Government, though, there
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was no notification by the Government to that
effect. The GJM led by the petitioner continued
with their agitational program which took the shape
of violent agitation on 08.06.2017 when GJM party,
led by petitioner-Bimal Gurung staged violent
demonstrations in front of Bhanu Bhawan, Darjeeling,
where State Cabinet, led by Chief Minister was
holding a meeting. The mob breached the first
barricade and proceeded towards the second. They
threw stones and bombs. A few supporters of GJM
also fired upon the police. To disperse the
unlawful assembly the police had to resort to
various measures. 7 police vehicles, a police
assistant booth, private vehicles and NBSTC bus was
burnt and many police personnel including PSO to the
ADG, North Bengal were injured. On 15.06.2017, on
receipt of specific information, Police party raided
party office of GJM at Patleybash, Darjeeling, where
two improvised fire arms, gun powder and other
incriminating articles were seized. Police parties
were attacked by supporters of GJM on several
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occasions, reports of which instances were lodged to
control the rampant mob. The District Magistrate,
Darjeeling had requisitioned Army on 08.06.2017 for
aid to civil authority in view of local disturbances
in order to prevent loss of life and property of
residents and visitors. Army aid in that phase
continued till 24.06.2017. Again Army was
requisitioned on 08.07.2017 in Darjeeling and
Jorbunglow PS areas for the same purpose. Further
Army Aid was requisitioned again on 18.07.2017 in
Darjeeling, Jorbunglow, Kurseong and Mirik Police
Station. Further, during this period, additional
contingent of 11 companies of CAPF were deployed in
the hills in addition to 4 companies of CAPF already
deployed in the area to bring the law and order
situation under control.
10. On 13.10.2017, the police, on receipt of
specific information, raided a place situated in the
forest on the banks of Choti Rangit River, where
during the raid the petitioner-Bimal Gurung and his
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team opened fire at the police team by reason of
such attack on police, S.I. Amitava Mallick
sustained bullet injuries and died. During the
raid, police seized 09 AK-47 rifles, Gelatin Sticks,
detonators and 1800 live ammunitions. The details
of articles which were seized on such raid have been
detailed in para 24(hh) at Page Nos. 50 to 56 of
counter-affidavit. During investigation, it could
be learnt that this place in the midst of forest,
was used as arm training camp for the henchmen of
Bimal Gurung. The GJM has declared complete bandh
in June, 2017 and during the entire period, which
bandh continued for 104 days, the police, CAPF and
Army had acted with utmost restraint and have used
force only in order to protect lives and properties
of public and Government. Due to the violent attack
by the GJM supporters two police personnel have died
and 119 police personnel sustained injuries. During
this period, violent agitators burnt 76 vehicles
including 25 police vehicles and vandalized 37
vehicles including 17 police vehicles. Apart from
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that they committed arson in 168
buildings/properties including 20 police
buildings/properties. In addition, they vandalized
31 buildings/properties including 05 police
properties. During the entire period of bandh, all
schools and colleges were closed for 104 days. Tea
Gardens in the hills were also closed leading to the
loss of livelihood of thousands of tea estate
labourers. Bandh adversely affected the world
famous tea industry of Darjeeling. The band also
adversely affected the thriving tourism industry of
Darjeeling. A total of 371 No. of cases of attack
on police, unlawful assembly, arson, rioting, bomb
explosion, use of firearms etc. has been registered
in Darjeeling, Kalimpong and Alipurduar districts.
Out of 371 cases, petitioner is named as accused in
56 cases. Out of 371 cases, 145 number of cases,
have been started on suo moto action by the police
whereas other cases have been started on the
complaints of other victims.
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11. Series of bomb blast have also been alleged in
the counter affidavit, accusing petitioner and other
supporters of GJM, with regard to which, several
FIRs have been lodged. The GJM supporters have
indulged in large scale violence causing damage to
private and public property. Cases have been
registered against the petitioner, supporters and
other miscreants of attack on police, arson, rioting
etc. The petitioner is not entitled for the relief
as claimed in the writ petition. Allegation that
police has registered cases falsely on the
petitioner and his supporters is denied.
Allegations that recovery of arms and ammunitions
were recovery of those arms, which were planted by
the police is also vehemently denied. The State has
also referred to orders passed by Calcutta High
Court in Writ Petition No. 15306 of 2017 where the
High Court has issued various directions on
16.06.2017, 07.07.2017, 11.07.2017 and 14.07.2017.
12. The State case is that even the High Court in
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its order has noted that situation in Darjeeling and
Kalimpong districts is deteriorating rapidly day by
day. Insurgency and the violent agitations are
continuing unabated. The High Court itself has
directed the Central Government to deploy four more
companies of CRPF, which was deployed by the Central
Government as was noticed by the High Court
subsequently on 19.07.2017. The State consistently
denied any extra judicial killings of supporters
requiring any investigation. It is further denied
that any perverse steps have been taken by the State
Agencies in order to quell the so called democratic
and alleged peaceful movement. It is pleaded that
present petition being based on incorrect fact, full
of suppression of material facts, no relief should
be granted. It is the petitioner who has been for a
long time evading process of law by not cooperating
with any investigation by police authorities and not
appearing before the trial court. In the counter
affidavit, the respondents have annexed various
photographs capturing damage to public and private
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properties, photographs referring to particular
cases have also been brought on record along with
the counter affidavit.
13. Petitioner has filed a rejoinder affidavit again
reiterating the prayer for independent
investigation. Petitioner’s case is that petitioner
is a well known political leader and he is being
persecuted by the State and its agencies. The
petitioner was provided police protection prior to
June, 2017. The petitioner further pleads that
cases against the petitioner originating prior to
2017 should be withdrawn as per GTA Act, 2011. He
has also referred to clause 29 of Tripartite
agreement entered in the year 2011. Petitioner’s
case is that all cases registered post May, 2017 are
lodged with an intention to pressurize and threaten
the members of GJM and to quell the legitimate
political movement of the Gorkha people, who are
seeking a separate State to protect their identity,
existence and interests. The Government of West
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Bengal has dealt with absolute high handedness to
quell the democratic and peaceful agitation. Almost
all cases are registered by the State Police, by
taking suo-moto cognizance of fabricated instances,
simply to bring the petitioner in custody and quell
the legitimate political movement. The
investigations are over and some of the FIRs and
charge sheets have been filed, which have been also
annexed in the counter affidavit, which clearly
shows that conspiracy to charge the petitioner in
all those cases are present since from beginning and
no real investigation has actually taken place. The
weapons recovered are sealed and stamped packets,
which weapons were merely planted by the police from
some malkhana. Cases registered of bomb blasts
under the Unlawful Activities (Prevention) Act are
all false and were registered when the petitioner
was discharged from the trial court from the murder
of one Mr. Madan Tamang on 17.08.2017. Execution of
Dawa Bhutia, by illegally entering into the State of
Sikkim. On 01.09.2017, the West Bengal Police, led
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by Superintendent of Police, Mr. Yadav, Kalimpong
went deep inside at Namchi, Sikkim and shot one
person named Dawa Bhutia, without any provocation,
against which a FIR has been registered by Namchi
Police Station against police personnel headed by
S.P., Kalimpong. Death of certain supporters of GJM
has also been mentioned in the rejoinder affidavit
and name of 11 persons have been given, who died
allegedly by various police actions. Petitioner
further stated that respondents have continued to
commit atrocities on innocent supporters of GJM. It
is further alleged that police officials are picking
and choosing the supporters of the petitioner and
threatening them to surrender and change their
allegiance to a leader sponsored by the State
Government.
14. We have heard Shri P.S. Patwalia, learned senior
counsel for the petitioner, Shri Kapil Sibal,
learned senior counsel, Dr. A.M. Singhvi, learned
senior counsel, Shri Rakesh Dwivedi, learned senior
counsel and Shri Kalyan Banerjee, learned senior
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counsel have been heard for the respondents. Learned
Attorney General has appeared for the Union of
India.
15. Shri P.S. Patwalia, learned senior counsel
appearing for the petitioner submits that the
petitioner who is President and Leader of GJM Party
has been carrying out only democratic and peaceful
agitation in support of the long standing demand of
separate State of Gorkhaland. It is submitted that
Education Minister and Chief Minister of State of
West Bengal announced that Bengali shall be a
compulsory language in the entire State of West
Bengal. He submits that meeting was convened on
30.05.2017 by the intellectual and literary persons
for exchange of ideas with regard to which FIR was
lodged without any provocation. He further submits
that demonstration and agitation with regard to
which FIRs have been lodged against the petitioner
and other members of GJM which were false and
without any reason and only to persecute the
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petitioner and other members of the party. He
submits that in the Police firing several members of
the GJM have been killed whereas FIRs have been
lodged against the petitioner and other members of
the Party for killing of their own supporters which
is unbelievable and false. He submits that FIR
No.182 of 2017 pertaining to bomb blast and several
other subsequent FIRs were lodged with word to word
similarity which indicates that FIRs have been
lodged in mechanical manner with only intent to rope
in petitioner and other members. The West Bengal
Police at the instance of the Government was lodging
different FIRs alleging commission of different
offences only to quell the democratic and peaceful
demonstration of the petitioner and his Party. It is
submitted that alleged recovery of huge arms and
ammunitions are false and bogus. It was well planted
recovery of AK-47, arms and ammunitions and for
which blame has been made on petitioner and other
Party members. The petitioner submits that neither
fair investigation is being conducted by the Police
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of West Bengal nor the petitioner has any hope of
any fair investigation in large number of cases. The
reports have been hurriedly filed which also
indicates the shoddy manner in which investigation
was conducted. It is submitted that the cases where
Police personnel have been made accused on killing
of a person, investigation by CID has not yet been
completed. It is submitted that mere fact that
charge-sheet has been filed in some cases and the
trial has commenced is no ground for denying to
transfer the investigation. He submits that this
Court has already held that mere filing of chargesheet
and commencing of trial is no ground to refuse
in entrusting the investigation to an independent
agency.
16. Learned counsel for the petitioner submits that
the investigation of all the FIRs be transferred to
any independent agency including NIA, CBI on which
West Bengal Government has no control for a fair and
correct investigation. He submits that peaceful and
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democratic demonstration cannot be curbed in the
manner in which State of West Bengal is doing.
17. Learned counsel for the petitioner in support of
his submission has placed reliance on the judgments
of this Court in State of West Bengal and others vs.
Committee for Protection of Democratic Rights, West
Bengal and others, (2010) 3 SCC 571, Sanjiv Kumar
vs. Union of India and others, (2005) 5 SCC 510,
Dharam Pal vs. State of Haryana and others, (2016) 4
SCC 160 and Mithilesh Kumar Singh vs. State of
Rajasthan and others, (2015) 9 SCC 795.
18. Shri Kapil Sibal and Dr. Abhishek Manu Singhvi,
learned senior counsel appearing for the State of
West Bengal refuting the submission of learned
counsel appearing for the petitioner contend that
present is not a case where this Court may exercise
jurisdiction under Article 32 for granting relief as
claimed in the writ petition. It is submitted that
the petitioner has sought for transfer of
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investigation of FIRs lodged against him and other
members of GJM as well. This petition is neither a
representative nor a PIL so that the petitioner can
espouse the cause of all members of the GJM who are
culpable or liable to be prosecuted. The
petitioner's prayer that any future FIRs/complaints
may also be transferred, is also a prayer which
cannot be considered. It is incumbent upon the
petitioner to identify the cases which need to be
transferred and make out grounds for transfer of
each of such cases. The prayer seeking transfer of
all the FIRs enmass including future FIRs is not
maintainable. The primary contention of the
petitioner is that the allegations against him are
false and that he is not culpable in any of the
cases registered against him. For such allegations,
the petitioner has full opportunity to raise all
legal and factual defences and has remedies
available under the Criminal Procedure Code. The
petitioner cannot be allowed to bypass the
provisions of the Cr.P.C. and entire procedure.
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19. It is further submitted that the most of the
cases where investigation has been transferred by
this Court are the cases which were filed at the
instance of the victims and not by the accused. The
reason for such indulgence is that the accused has
sufficient opportunity of representation, whereas
the victim does not have any, hence, it is to
safeguard the victim's cause that courts have to
step in to ensure fair investigation and trial.
Further, the petitioner cannot seek transfer of
investigation in cases where charge-sheet has
already been filed and trial has commenced. The
allegations of bias against the entire State
machinery are unfounded and unsubstantiated. The
petitioner has not made out any allegation against
the judicial machinery available in the State. The
cases against the petitioner are serious in nature
and the instant writ petition has been filed solely
to scuttle investigation against the petitioner.
The submission of the petitioner that certain FIRs
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are identical in word by word, in no manner, is to
dilute the seriousness of the allegations for which
FIR has been registered.
20. It is submitted that whenever the power has been
exercised by this Court or by the High Court for the
transfer of investigation to a Central Agency it was
based on the facts of each case. Looking into the
facts of the present case, where not only there is
serious threat to law and order and the public order
by violent acts life and property has also been
damaged. Distrust on whole State machinery and
judicial system cannot be accepted. It is the
responsibility of the State to maintain the law and
order and to protect the lives and properties of the
citizens. A State cannot abdicate its obligation to
quell the violent agitation and to take appropriate
action permitted under law.
21. Shri Rakesh Dwivedi, learned senior counsel,
appearing for the Director General of Police, adopts
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the submission raised by Shri Kapil Sibal and Dr.
A.M. Singhvi, and he submits that Police officers
and authorities are taking action as per law and the
allegation that there is any bias on the part of the
Police authorities towards the petitioner is
unfounded. There have been cases registered against
the petitioner even before starting of the agitation
from May, 2017. The petitioner and his supporters by
violent agitation had made the entire area stand
still causing loss of lives and properties of the
residents.
22. Learned Attorney General appearing for the Union
of India submits that Union of India has rendered
all necessary help as per the request of the State
for providing Central Forces to the State for
maintaining peace. Learned Attorney General submits
that Union Government is always ready to comply with
any direction issued by this Court in this regard.
23. We have considered the submissions of the
learned counsel for the parties and perused the
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records.
24. Before we advert to the facts of the present
case and prayers made in the writ petition, it is
useful to recall necessary principles as enumerated
by this Court while exercising jurisdiction by this
Court under Article 32 or the High Court under
Article 226 for transferring investigation of a
criminal case to a Central Agency. The Constitution
Bench of this Court in State of West Bengal (supra)
has authoritatively laid down that the High Court
under Article 226 and this Court under Article 32
can issue direction to CBI to investigate a
cognizable offence within the State without consent
of that State. The Constitution Bench also in the
above context has held that although this Court has
implied power and jurisdiction to direct for the
transfer to CBI to investigate a cognizable offence
but also has obligation to exercise the said power
with great caution which must be exercised
sparingly, cautiously and in exceptional situations.
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In paragraph 70 with regard to exercise of such
power following has been laid down by the
Constitution Bench:
“70. Before parting with the case, we
deem it necessary to emphasise that
despite wide powers conferred by Articles
32 and 226 of the Constitution, while
passing any order, the Courts must bear
in mind certain self-imposed limitations
on the exercise of these constitutional
powers. The very plenitude of the power
under the said articles requires great
caution in its exercise. Insofar as the
question of issuing a direction to CBI to
conduct investigation in a case is
concerned, although no inflexible
guidelines can be laid down to decide
whether or not such power should be
exercised but time and again it has been
reiterated that such an order is not to
be passed as a matter of routine or
merely because a party has levelled some
allegations against the local police.
This extraordinary power must be
exercised sparingly, cautiously and in
exceptional situations where it becomes
necessary to provide credibility and
instil confidence in investigations or
where the incident may have national and
international ramifications or where such
an order may be necessary for doing
complete justice and enforcing the
fundamental rights. Otherwise CBI would
be flooded with a large number of cases
and with limited resources, may find it
difficult to properly investigate even
serious cases and in the process lose its
credibility and purpose with
unsatisfactory investigations.”
32
25. The two-Judge Bench of this Court in Dharam Pal
vs. State of Haryana and others (supra) while
referring to the principles for transferring
investigation has laid down following in paragraphs
18, 19 and 24:
“18. A three-Judge Bench in K.V.
Rajendran v. Supt. of Police reiterating
the said principle stated that: (SCC p.
485, para 13)
“13. … the power of transferring
such investigation must be in rare
and exceptional cases where the
court finds it necessary in order
to do justice between the parties
and to instil confidence in the
public mind, or where investigation
by the State police lacks
credibility and it is necessary for
having ‘a fair, honest and complete
investigation’, and particularly,
when it is imperative to retain
public confidence in the impartial
working of the State agencies.”
19. The Court, after referring to earlier
decisions, has laid down as follows:
(K.V. Rajendran case, SCC p. 487, para
17)
“17. In view of the above, the law
can be summarised to the effect
that the Court could exercise its
constitutional powers for
transferring an investigation from
33
the State investigating agency to
any other independent investigating
agency like CBI only in rare and
exceptional cases. Such as where
high officials of State authorities
are involved, or the accusation
itself is against the top officials
of the investigating agency thereby
allowing them to influence the
investigation, and further that it
is so necessary to do justice and
to instil confidence in the
investigation or where the
investigation is prima facie found
to be tainted/biased.”
24. Be it noted here that the
constitutional courts can direct for
further investigation or investigation by
some other investigating agency. The
purpose is, there has to be a fair
investigation and a fair trial. The fair
trial may be quite difficult unless there
is a fair investigation. We are
absolutely conscious that direction for
further investigation by another agency
has to be very sparingly issued but the
facts depicted in this case compel us to
exercise the said power. We are disposed
to think that purpose of justice commands
that the cause of the victim, the husband
of the deceased, deserves to be answered
so that miscarriage of justice is
avoided. Therefore, in this case the
stage of the case cannot be the governing
factor.”
26. The law is thus well settled that power of
transferring investigation to other investigating
34
agency must be exercised in rare and exceptional
cases where the Court finds it necessary in order to
do justice between the parties to instil confidence
in the public mind, or where investigation by the
State Police lacks credibility. Such power has to be
exercised in rare and exceptional cases. In K.V.
Rajendran vs. Superintendent of Police, CBCID South
Zone, Of Police, (2013) 12 SCC 480, this Court has
noted few circumstances where the Court could
exercise its constitutional power to transfer of
investigation from State Police to CBI such as: (i)
where high officials of State authorities are
involved, or (ii) where the accusation itself is
against the top officials of the investigating
agency thereby allowing them to influence the
investigation, or (iii)where investigation prima
facie is found to be tainted/biased.
27. Before we apply the above principles laid down
by this Court to find out whether the facts of the
35
present case are rare and exceptional where this
Court has to exercise power under Article 32 to
transfer enmass cases to other agency, we need to
advert what is the nature and extent of democratic
and peaceful demonstration as protected by our
Constitution violation of which may raise violation
of fundamental rights of a person.
28. Article 19 of the Constitution of India
guarantees some of most important fundamental rights
to the citizens. Article 19 protects important
attributes of personal liberty. Right to freedom of
speech and expression as guaranteed under
Article 19(1)(a) and the right to assemble peaceably
and without arms as protected by Article 19(1)(b)
are the rights which in reference to the present
case have importance. The right of freedom of speech
and expression coupled with right to assemble
peaceably and without arms are rights expression of
which are reflected in carrying demonstration on
several occasions. Freedom to air once view is the
36
life line of any democratic institution. The word
freedom of speech must be broadly construed to
include right to circulate once view by word or
mouth or through audio visual instrument. Right of
public speech is one form of expression which is
also a part of freedom of speech and expression.
Demonstrations are also a mode of expression of the
rights guaranteed under Article 19(1)(a).
Demonstrations whether political, religious or
social or other demonstrations which create public,
disturbances or operate as nuisances, or create or
manifestly threaten some tangible public or private
mischief, are not covered by protection under
Article 19(1). A demonstration might take the form
of an assembly and even then the intention is to
convey to the person or authority to whom the
communication is intended the feelings of the group
which assembles. From the very nature of things a
demonstration may take various forms; “it may be
noisy and disorderly”, for instance stone-throwing
by a crowd may be cited as an example of a violent
37
and disorderly demonstration and this would not
obviously be within Article 19(1)(a) or (b). We in
the present case are concerned with the
demonstrations and the bandh call given by GJM.
29. A full Bench of the Kerala High Court in Bharat
Kumar Vs. State of Kerala & Ors., AIR 1997 Ker. 291
had occasion to consider fundamental rights and
bandh given by political parties. The Kerala High
Court while describing call for bandh held that call
for a bandh is distinct and different from call for
a general strike or the call for hartal. The
intention of the callers of the bandh is to ensure
that no activity either public or private is carried
on that day. The full Bench considered different
aspects of bandh in reference to fundamental rights
of other persons under Article 19(1). In paragraph
17 full Bench of Kerala High Court laid down
following:
"No political party or organisation can
claim that it is entitled to paralyse the
industry and commerce in the entire State
or nation and is entitled to prevent the
38
citizens not in sympathy with its
viewpoint, from exercising their
fundamental rights or from performing
their duties for their own benefit or for
the benefit of the State or the nation.
Such a claim would be unreasonable and
could not be accepted as a legitimate
exercise of a fundamental right by a
political party or those comprising it.
The claim for relief by the petitioners
in these original petitions will have to
be considered in this background.”
30. An appeal was filed against the said judgment
before this Court. A three-Judge Bench of this Court
in The Communist Party of India (M) vs. Bharat Kumar
& Ors., (1998) 1 SCC 201, affirmed the judgment of
the Kerala High Court. While affirming the judgment
following was laid down in paragraph 3:
“3. On a perusal of the impugned judgment
of the High Court‡, referring to which
learned counsel for the appellant pointed
out certain portions, particularly in
paras 13 and 18 including the operative
part in support of their submissions, we
find that the judgment does not call for
any interference. We are satisfied that
the distinction drawn by the High Court
between a “Bandh” and a call for general
strike or “Hartal” is well made out with
reference to the effect of a “Bandh” on
the fundamental rights of other citizens.
There cannot be any doubt that the
fundamental rights of the people as a
whole cannot be subservient to the claim
39
of fundamental right of an individual or
only a section of the people. It is on
the basis of this distinction that the
High Court has rightly concluded that
there cannot be any right to call or
enforce a “Bandh” which interferes with
the exercise of the fundamental freedoms
of other citizens, in addition to causing
national loss in many ways. We may also
add that the reasoning given by the High
Court, particularly those in paragraphs
12, 13 and 17 for the ultimate conclusion
and directions in paragraph 18 is correct
with which we are in agreement. We may
also observe that the High Court has
drawn a very appropriate distinction
between a “Bandh” on the one hand and a
call for general strike or “Hartal” on
the other. We are in agreement with the
view taken by the High Court.”
31. The two-Judge Bench of this Court in James
Martin vs. State of Kerala, (2004) 2 SCC 203, which
was a case where in reference to Bharat bandh call
sponsored by political parties, appellant was
prosecuted for the offence under Section 304 Part I,
326 and 324 read with Section 34 IPC and 25-B(1) of
Arms Act, 1959 and was convicted. While dealing with
the case this Court made the following pertinent
observations:
“24. Before we part with the case, it
needs to be noted that in the name of
40
hartal or bandh or strike no person has
any right to cause inconvenience to any
other person or to cause in any manner a
threat or apprehension of risk to life,
liberty and property of any citizen or
destruction of life and property, and the
least to any government or public
property. It is high time that the
authorities concerned take serious note
of this requirement while dealing with
those who destroy public property in the
name of strike, hartal or bandh. Those
who at times may have even genuine
demands to make should not lose sight of
the overall situation eluding control and
reaching unmanageable bounds endangering
life, liberty and property of citizens
and public, enabling anti-social forces
to gain control resulting in all-around
destruction with counterproductive
results at the expense of public order
and public peace. No person has any right
to destroy another’s property in the
guise of bandh or hartal or strike,
irrespective of the proclaimed
reasonableness of the cause or the
question whether there is or was any
legal sanction for the same. The case at
hand is one which led to the destruction
of property and loss of lives, because of
irresponsible and illegal acts of some in
the name of bandh or hartal or strike.”
32. A two-Judge Bench of this Court in Anita Thakur
and others vs. Government of Jammu and Kashmir and
others, (2016) 15 SCC 525 in which one of us Dr.
A.K. Sikri was a member had occasion to consider
41
Article 19 in reference to a protest march organised
by a group of people. While dealing with the
demonstration under Article 19(1)(a) and (b)
following was laid down in paragraph 12:
“12. We can appreciate that holding
peaceful demonstration in order to air
their grievances and to see that their
voice is heard in the relevant quarters
is the right of the people. Such a right
can be traced to the fundamental freedom
that is guaranteed under Articles 19(1)
(a), 19(1)(b) and 19(1)(c) of the
Constitution. Article 19(1)(a) confers
freedom of speech to the citizens of this
country and, thus, this provision ensures
that the petitioners could raise slogan,
albeit in a peaceful and orderly manner,
without using offensive language. Article
19(1)(b) confers the right to assemble
and, thus, guarantees that all citizens
have the right to assemble peacefully and
without arms. Right to move freely given
under Article 19(1)(d), again, ensures
that the petitioners could take out
peaceful march. The “right to assemble”
is beautifully captured in an eloquent
statement that “an unarmed, peaceful
protest procession in the land of “salt
satyagraha”, fast-unto-death and “do or
die” is no jural anathema”. It hardly
needs elaboration that a distinguishing
feature of any democracy is the space
offered for legitimate dissent. One
cherished and valuable aspect of
political life in India is a tradition to
express grievances through direct action
or peaceful protest. Organised, nonviolent
protest marches were a key weapon
42
in the struggle for Independence, and the
right to peaceful protest is now
recognised as a fundamental right in the
Constitution.”
33. This Court, however, noticed that more often
than not, such protestors take to hooliganism,
vandlism and even destroy public/private property.
Following observations have been made in paragraph
16:
“16. Before adverting to the issue at
hand, we would like to make some general
remarks about the manner in which these
demonstrations are taking shape. Recent
happenings show an unfortunate trend
where such demonstrations and protests
are on increase. There are all kinds of
protests: on social issues, on political
issues and on demands of various sections
of the society of varied kinds. It is
also becoming a common ground that
religious, ethnic, regional language,
caste and class divisions are frequently
exploited to foment violence whenever
mass demonstrations or dharnas, etc. take
place. It is unfortunate that more often
than not, such protestors take to
hooliganism, vandalism and even destroy
public/private property. In the process,
when police tries to control, the
protestors/mob violently target policemen
as well. Unruly groups and violent
demonstrations are so common that people
have come to see them as an appendage of
Indian democracy. All these situations
frequently result in police using force.
43
This in turn exacerbates public anger
against the police. In Kashmir itself
there have been numerous instances where
separatist groups have provoked violence.
In this scenario, task of the police and
law-enforcing agencies becomes more
difficult and delicate. In curbing such
violence or dispersing unlawful
assemblies, police has to accomplish its
task with utmost care, deftness and
precision. Thus, on the one hand, law and
order needs to be restored and at the
same time, it is also to be ensured that
unnecessary force or the force beyond
what is absolutely essential is not used.
Policemen are required to undergo special
training to deal with these situations.
Many times the situations turn ugly or go
out of control because of lack of
sufficient training to the police
personnel to deal with violence and
challenges to their authority. There are
various documents in the form of police
manual and even international covenants
proscribing use of unnecessary force and
mandating that force should only be used
when it is absolutely necessary. Even
when used, it should be minimum and
proportional to the situation and its use
to be discontinued as soon as the danger
to life and property subsides.”
34. From the above, it is clear that Article 19(1)
(a) and (b) gives constitutional right to all
citizens freedom of speech and expression which
includes carrying out public demonstration also but
public demonstration when becomes violent and
44
damages the public and private properties and harm
lives of people it goes beyond fundamental rights
guaranteed under Article 19(1) and becomes an
offence punishable under law.
35. Before any further discussion we record a note
of caution. In the present case we are not called
upon to express any opinion as to whether
allegations made in FIRs which have been lodged
against the petitioner and other supporters of GJM
are true or false. The issue is as to whether, as
prayed by the petitioner, investigation in such
cases are required to be transferred to a central
investigate agency. Thus our observations are only
in reference to answer the prayer made in the writ
petition. Our observation is not to be treated as
any expression of opinion on the allegations made in
FIRs. We do not express any opinion either in favour
or against the petitioner with regard to the
allegations made in various FIRs. Our observations
shall not influence any investigating agency or any
45
Court which happen to deal with the criminal cases
which are referred to in the writ petition.
36. Reference has been made to the various orders of
the High Court which were passed by the Calcutta
High Court in Writ Petition No.15306(W) of 2017. The
grievance raised in the said writ petition was that
Gorkha Janmukti Morcha (GJM) has organised a bandh
since 9th June, 2017 which has paralysed the working
in the hill area, more specially in Darjeeling.
Referring to the order dated 07.08.2017, the High
Court has made directions to the State to take
necessary action similar to earlier directions in
respect of the functioning of essential services due
to the illegal and disruption measures adopted by
the GJM. It is sufficient to refer to order dated
14.07.2017 where the Calcutta High Court noticed the
following:
"The State Government and the Central
Government have filed their respective
affidavits. The affidavit on behalf of
the Central Bureau of Investigation (in
short, the C.B.I.) has not been filed as
yet.
46
The situation in Darjeeling and
Kalimpong districts is deteriorating
rapidly day by day. Insurgency and the
violent agitations are continuing
unabated. The life and properties of the
general public are in danger.
xxx xxx xxx
The situation in Darjeeling and
Kalimpong districts has escalated since
the agitation started on 8th June, 2017.
Despite our earlier orders directing both
the State and the Central Governments to
ensure that peace and normalcy are
restored in the aforesaid two districts,
it is apparent that the endeavour on the
part of the State Government and the
Central Government is wanting. Otherwise
had the Governments worked together, by
now the situation could have been brought
under control. This one-upmanship of the
Central Government and the State
Government is causing harm to the people
of the two districts of Darjeeling and
Kalimpong. Public property, power
installations have become casualties in
the large-scale arson and agitation.”
37. The above order indicates that situations in
districts of Darjeeling and Kalimpong were
deteriorating and insurgency and violent agitations
were continuing unabated. The protest no longer
remained peaceful and democratic. The allegations
made of the offences with regard to which various
47
FIRs have been lodged can not be rejected as false
and concocted as contended by the petitioner. On the
record there is sufficient material to indicate the
severe damage to live and property.
38. Learned counsel for the respondent has rightly
contended that it cannot be imagined that State
Police of West Bengal itself has destructed the
property including Police vehicles only for the
purpose of foisting cases against the petitioner and
its supporters. Deaths of several persons which
included Police personnel is admitted to by both the
parties. More than 300 cases have been filed with
regard to which FIRs have been lodged after May,
2017.
39. As noted above, the petitioner's prayer is to
transfer the investigation of all the FIRs lodged
against the petitioner and other members of GJM as
per Annexure P4. Annexure P4 contains details of 112
cases in which petitioner is named in 31 cases. The
48
offences alleged in the cases are serious offences
including offences under Section 121, 121A, 153A and
offences under Unlawful Act, 1967 as well as
offences under Section 307, 302 IPC etc. Transfer of
investigation of such large number of cases enmass
is neither practicable nor justified. The
jurisdiction under Article 226 and Article 32 with
regard to transfer of investigation of cases has to
be exercised on facts of each and every case. There
are no grounds available in the aforesaid 112 cases
so as this Court may exercise jurisdiction under
Article 32 for transfer of investigation in all
cases.
40. The petitioner is named only in 31 cases but a
large number of accused are involved in all the
cases in Annexure P4. From the counter-affidavit
further details have been brought on record which
indicate that in 56 cases petitioner is accused and
there are total 371 cases which have been registered
after May, 2017 regarding various subversive
49
activities. We, however, clarify that in principle
when transfer of one case is permissible, number of
cases may not be an impediment in transfer of more
than one case. Even if only those cases are to be
taken into consideration where petitioner is named
accused, there are no such special grounds made out
in the writ petition on which even those cases be
considered for transferring the investigation.
41. The present case is a case where the petitioner
as Leader of GJM is a spare heading an agitation
against the State demanding a separate State-hood.
The State is obliged to maintain law and order and
to protect live and property of the citizens. It
has to take necessary steps to contain such
agitation and restore the peace. The cases lodged in
the FIR submitted at the instance of the Police or
other complainants can not be discarded on the
specious pleas that they have been lodged due to
bias of the State and with the intent to persecute
the petitioner. The “State” is a political unit
50
vested with constitutional duties and obligations.
The Governor of the State formally represent the
State in whom the executive Power of the State is
vested and exercised by him either directly or
through officers subordinate to him in accordance
with the Constitution of India. Under List II,
Entry I of Seventh Schedule of the Constitution,
“Public order” is a subject allocated to the State.
All legislative and executive powers in reference to
Public order is thus vested in the State. There is
a Council Of Ministers with the Chief Minister as
the head to aid and advise the Governor in the
exercise of his functions, except in so far as he is
by or under the Constitution required to exercise
his functions or any of them in his discretion. The
State functions through its various organs
consisting of different personnels and authorities .
State functionaries have their own rights and
obligations entrusted to them under different
Statutes governing the field. The Code of Criminal
Procedure is one of such Statutes, which govern the
51
law relating to criminal procedure. The authorities
and police officers, who are entrusted different
obligations and functions under the Code of Criminal
Procedure, has to act as ordained by the Code of
Criminal Procedure. It is an obligation of the
police officers to register a First Information
Report when they receive any information regarding
commission of a cognizable offence. For recording
such offences, they are neither required to await
any instructions from any authority or State nor
they have to abdicate their obligation to register
F.I.R. as required by Cr.P.C. The Constitution
Bench of this Court in Lalita Kumari Vs. Government
of Uttar Pradesh & Ors., (2014) 2 SCC 1 has
elaborately considered the obligation to register an
F.I.R. when information of cognizable offence is
received by a police personnel. Following are the
relevant observations made by the Constitution Bench
speaking through Justice P. Sathasivam that “When a
cognizable offence takes place before the eyes of
police personnel, he is not to await any information
52
or any other source for registering a F.I.R., it is
his obligation and duty to register a F.I.R.”.
Thus, F.I.R. registered at the instance of police
leading serious offences involving petitioner and
supporters of GJM, cannot be discarded on the plea
that it was police, who has roped in the petitioner
and other supporters by lodging the F.I.R. No bias
or mala fide has been pleaded against any individual
State functionary or police officer nor any such
person has been impleaded in the writ petition so as
to consider the allegation of bias. It is very easy
to make allegations of bias against a person but it
is difficult to substantiate the same. In the
present case, neither there are any pleading nor any
material to come to a conclusion that State
functionaries including police functionaries are
biased against the petitioner. Thus, the
allegations of the bias made against the State and
police functionaries had to be rejected and
petitioner cannot be permitted in saying that the
FIRs lodged against him are result of a bias of the
53
State or police personnels. In Para 83 of the
Constitution Bench Judgment in Lalita Kumari Vs.
Government of Uttar Pradesh & Ors. (supra),
following observations were made:-
“83. In terms of the language used in
Section 154 of the Code, the police is
duty-bound to proceed to conduct
investigation into a cognizable offence
even without receiving information (i.e.
FIR) about commission of such an offence,
if the officer in charge of the police
station otherwise suspects the commission
of such an offence. The legislative
intent is therefore quite clear i.e. to
ensure that every cognizable offence is
promptly investigated in accordance with
law. This being the legal position, there
is no reason that there should be any
discretion or option left with the police
to register or not to register an FIR
when information is given about the
commission of a cognizable offence. Every
cognizable offence must be investigated
promptly in accordance with law and all
information provided under Section 154 of
the Code about the commission of a
cognizable offence must be registered as
an FIR so as to initiate an offence. The
requirement of Section 154 of the Code is
only that the report must disclose the
commission of a cognizable offence and
that is sufficient to set the
investigating machinery into action.”
42. One of the submissions raised by the petitioner
is that the mere fact that in certain cases the
54
charge-sheet has been submitted and no investigation
pending can also be transferred. Petitioner has
relied on the judgment of Dharam Pal vs. State of
Haryana (supra) where this Court had held that the
commencement of a trial and examination of some
witnesses cannot be an absolute impediment for
exercising the constitutional power vested in the
High Court and this Court to ensure a fair and just
investigation. In paragraph 25 of the judgment
following has been stated:
"25. We may further elucidate. The power
to order fresh, de novo or
reinvestigation being vested with the
constitutional courts, the commencement
of a trial and examination of some
witnesses cannot be an absolute
impediment for exercising the said
constitutional power which is meant to
ensure a fair and just investigation. I
can never be forgotten that as the great
ocean has only one test, the test of
salt, so does justice has one flavour,
the flavour of answering to the distress
of the people without any
discrimination....”
43. As per law laid down by this Court in the above
case when the power can be exercised even after the
55
commencement of the trial there cannot be any fetter
to the power of this Court in transferring the
investigation even after the filing of the chargesheet
but in view of the facts and reasons as stated
above present is not a case where this Court may
exercise jurisdiction under Article 32 to transfer
the investigation in large number of cases enmass
registered against the petitioner and other members
of the GJM. A judgment on which reliance has been
placed by the petitioner is judgment of Mithilesh
Kumar Singh vs. State of Rajasthan (supra). The
above case was a case where daughter of the
petitioner died by falling from four storied College
Hostel. Petitioner came with the case that
investigation conducted by the local police was not
fair and the version put up by the police that the
girl committed suicide is not correct. In the above
context this Court held that a trial based on a
partisan, motivated, one-sided, or biased
investigation can hardly be fair. In paragraphs 11
and 12 following has been laid down:
56
"11. Such being the importance of fair
and proper investigation, this Court has
in numerous cases arising out of several
distinctly different fact situations
exercised its power of transferring
investigation from the
State/jurisdictional police to the
Central Bureau of Investigation under the
Delhi Police Establishment Act. There was
mercifully no challenge to the power of
this Court to direct such a transfer and
in my opinion rightly so as the question
whether this Court has the jurisdiction
to direct transfer stands authoritatively
settled by the Constitution Bench of this
Court in State of W.B v. Committee for
Protection of Democratic Rights (2010 3
SCC 571).
12. Even so the availability of power and
its exercise are two distinct matters.
This Court does not direct transfer of
investigation just for the asking nor is
transfer directed only to satisfy the ego
or vindicate the prestige of a party
interested in such investigation. The
decision whether transfer should or
should not be ordered rests on the
Court's satisfaction whether the facts
and circumstances of a given case demand
such an order. No hard-and-fast rule has
been or can possibly be prescribed for
universal application to all cases. Each
case will obviously depend upon its own
facts. What is important is that the
Court while exercising its jurisdiction
to direct transfer remains sensitive to
the principle that transfers are not
ordered just because a party seeks to
lead the investigator to a given
conclusion. It is only when there is a
reasonable apprehension about justice
57
becoming a victim because of shabby or
partisan investigation that the Court may
step in and exercise its extraordinary
powers. The sensibility of the victims of
the crime or their next of kin is not
wholly irrelevant in such situations.
After all transfer of investigation to an
outside agency does not imply that the
transferee agency will necessarily, much
less falsely implicate anyone in the
commission of the crime. That is
particularly so when transfer is ordered
to an outside agency perceived to be
independent of influences, pressures and
pulls that are commonplace when State
Police investigates matters of some
significance. The confidence of the party
seeking transfer in the outside agency in
such cases itself rests on the
independence of that agency from such or
similar other considerations. It follows
that unless the Court sees any design
behind the prayer for transfer, the same
must be seen as an attempt only to ensure
that the truth is discovered. The
hallmark of a transfer is the perceived
independence of the transferee more than
any other consideration. Discovery of
truth is the ultimate purpose of any
investigation and who can do it better
than an agency that is independent.”
44. The above was a case where writ petition was
filed under Article 32 by the victim who is the
father of the deceased and the Court was satisfied
that circumstances as pleaded by the petitioner
required investigation by the independent agency
58
like CBI. The said case was on its own facts and
does not help the petitioner in the present case.
45. Judgment of Sanjiv Kumar vs. Om Prakash
Chautala (supra) was again a case filed by Sanjiv
Kumar who was a whistle-blower alleging large-scale
corruption and tampering of records in filling up of
about 4000 posts of JBT teachers in State of
Haryana. The writ petition filed by Sanjiv Kumar
being W.P.(Crl.)No.93 of 2003 was disposed of by
this Court directing the complaint to be
investigated by CBI. There were certain cases which
were under the investigation against the petitioner
himself which were also entrusted to the CBI. The
said case was on its own facts one does not lend
support to the petitioner.
46. Most of the cases which were cited before us by
the parties are the cases where this Court exercised
jurisdiction under Article 32 in transferring the
investigation at the instance of the victims. For a
59
victim the investigation in a case is of much
significance. In the event, a proper investigation
is not carried out and relevant evidence which would
have been collected by due care and caution, is not
collected, the victim is sure not to get justice on
such faulty investigation. In case of faulty
investigation, where an accused has been wrongly
roped in, he has right to seek all remedies before
Court of Law for further investigation and a Court
of Law is able to marshall all evidence and capable
of discerning truth from evidence on record.
Although as a principle, there is no fetter on an
accused to move a Court of Law for transfer of
investigation, but on the facts of this case as
noted above, we do not think it to be a fit case
where this Court may exercise jurisdiction under
Article 32 to transfer the cases enmass to an
independent agency. The present case cannot be said
to be a case of individual's persecution by the
State authority.
47. In view of the foregoing discussion, we are of
60
the view that the petitioner is not entitled for any
relief. The writ petition is dismissed.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 16, 2018.
61
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 201 OF 2017
GANGA MALIK                    … PETITIONER
VERSUS
UNION OF INDIA & ORS.       … RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
The petitioner's case in this writ petition is that
her   son,   Amitava   Malik,   Sub­Inspector   of   Police   was
killed on 13.10.2017 when Police party which consisted
of Amitava Malik proceeded to arrest several accused who
were   camping   at   south   bank   of   river     Chhota   Rangeet,
P.S. Sadar, Dajeeling. While chasing the miscreants the
Police personnel were fired upon in which Amitava Malik
son of the petitioner died. The petitioner in this writ
petition has prayed for the following relief:
a) Issue a  writ  of  mandamus  or  any  other
appropriate   writ   order   or   direction   to   the
respondents   to   ensure   that   the   petitioner
and her family's life is protected;
b) Issue a  writ  of  mandamus  or  any  other
appropriate   writ   order   or   direction   to
respondent   No.2,   State   of   West   Bengal   to
62
expeditiously conclude the trial in Sadar PS
Case   No.213   dated   13.10.2017   preferably
within   a   time   bound   manner   and   punish   the
culprits;
c) Issue a  writ  of  mandamus  or  any  other
appropriate   writ   order   or   direction   to   the
respondent   to   pay   compensation   to   the
petitioner   for   the   irreparable   loss   of
losing her son which cannot be quantified in
monetary terms.
2. Petitioner in the writ petition has stated that Case
No.213   has   already   been   registered   in   P.S.   Sadar   in
which charge­sheet has also been submitted and trial is
going   on.   In   so   far   as   trial   of   criminal   case   is
concerned the law shall take its own course. In so far
as other reliefs, we are of the view that it is open for
the   petitioner   to   approach   respondent   No.2   for
appropriate relief.
3. By granting the aforesaid liberty to the petitioner,
the writ petition is dismissed.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 16, 2018.

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